Boys Town [2014] QCAT 247

CITATION: Boys Town [2014] QCAT 247 PARTIES: BoysTown APPLICATION NUMBER: ADL104-13 MATTER TYPE: Anti-discrimination matters HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: Senior Member Endicott DELIVERED ON: 16 May 2014 DELIVERED AT: Brisbane ORDERS MADE: The application for exemption is refused. CATCHWORDS: ANTI-DISCRIMINATION – where employment based on gender is prohibited – where exemptions exist for genuine occupational requirements OCCUPATIONAL REQUIREMENTS – where staff work in refuge service with women and children escaping domestic violence – where domestic violence is predominately perpetrated by men – whether employment of female staff only is a genuine occupational requirement EXEMPTION FROM LIABILITY – where general exemption from liability sought – where specific exemption or defence available – whether general exemption is necessary Anti-Discrimination Act 1991 (Qld) ss 25, 104, 113 and stated reasons in the pre-amble Qantas Airways v Christie (1998) HCA 18 Boeing Australia Holdings Pty Ltd & related entities [2003] QADT 21 The Women’s Community Aid Association (Qld) Limited [2011] QCAT 593 -- 1 of 4 -- 2 APPEARANCES and REPRESENTATION (if any): This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act). REASONS FOR DECISION [1] BoysTown is a national child-safe organisation with a mission to enable young people, especially those who are marginalised and without a voice, to improve their quality of life. BoysTown wants to employ case workers to provide individual, family and group assessment and support to children, young people and families who are clients of the organisation’s Family Violence Refuge Service. BoysTown also employ other staff in the Family/Domestic Violence Refuge Service such as Social Skills Activities Workers and Counsellors. [2] The duties of the case worker are numerous and involve intensive work with clients of the organisation. The case worker will, among other duties, plan and develop individual case plans for each family, provide crisis intervention support to individuals and families, participate in the range of supports offered to families, provide practical support to clients, develop and implement workshops and information sessions for women and children on family violence and impacts on children and families, safety planning and self esteem, provide assistance and support to women seeking domestic violence orders, and participate in regular meetings with clients. [3] Although the tribunal was not informed of the specific duties performed by Activities Workers and Counsellors, it is reasonable to infer that these types of workers also provide intensive support to children, young people and women who are clients within the Family/ Domestic Violence Refuge Service. The tribunal has been told that the families resident in the Refuge Service have experienced or witnessed violence and abuse perpetrated predominately by men. [4] BoysTown wants to employ female staff only for these roles of case workers, activities workers and counsellors in the Refuge Service. It was submitted that women and children leaving family/domestic violence situations can be fearful of men. The refuge setting is isolated and the client services staff interact with the resident families on a daily basis. [5] The family/domestic violence refuge is in a high security and confidential location which houses up to 6 to 8 families at a time. Only women and children reside in the refuge houses. It is submitted that the level of trauma experienced by the women and children escaping violent and abusive situations can be extreme. It is the object of the family/domestic violence refuge service to maintain a safe service where families can begin to address their trauma. Staff members are expected to respond to the needs of the clients and are on call after hours and are expected to return to the refuge site after hours if a situation requires this response. -- 2 of 4 -- 3 [6] It is submitted that the families who access the refuge service are diverse in nature and include Aboriginal or Torres Strait Islander people or those from culturally diverse backgrounds. Women across a range of cultural groups and religions do not engage with men about issues relating to their health and wellbeing. Working with women from those cultural and religious backgrounds require a response from other women and not men. [7] It was also submitted that women and children on entry to the refuge service need time to build trusting relationships with the service workers. They can be fearful of men after experiencing violent relationships from which they are escaping at the refuge service. [8] BoysTown applied to QCAT for a general exemption under section 113 of the Anti-Discrimination Act 1991 (Qld) from specific areas of the operation of the Act. BoysTown seeks an exemption to employ female staff only in the Refuge Service in order to provide security for the women and children who access that service. [9] In considering this application, QCAT must first examine whether an exemption is necessary.1 Conduct which may appear initially to breach the provisions of the Anti-Discrimination Act 1991 (Qld) may be excused by specific exemptions or defences in the Act. If there is a specific exemption, it is not necessary that a general exemption under section 113 is granted. [10] Section 25 of the Anti-Discrimination Act 1991 (Qld) permits genuine occupational requirements being imposed in work or work related areas of activities. Terms such as “genuine occupational requirement” have been the subject of judicial consideration. In essence the cases reveal that determining if a requirement is an inherent requirement must involve consideration as to whether a position would be essentially the same in the absence of the requirement.2 [11] As was discussed in an earlier exemption application by the Women’s Community Aid Association3, consideration of whether there is a genuine occupational requirement should take into account whether female clients and their children accessing the family/domestic violence refuge service would react differently to the support provided depending on the sex of the worker. If the presence of a male worker would be likely to trigger adverse emotional responses and prevent the development of trust with the workers, then a strong factor arises in favour of there being an inherent occupational requirement for female staff only to work in the refuge service. [12] A crucial element in this exemption application is that the service is being provided to women and children escaping domestic violence perpetrated by men and that the services are designed to provide a refuge while 1 Exemption application re: Boeing Australia Holdings Pty Ltd & related entities [2003] QADT 21. 2 See for example Qantas Airways v Christie (1998) HCA 18, [36]. 3 Re The Women’s Community Aid Association (Qld) Limited [2011] QCAT 593. -- 3 of 4 -- 4 women develop self esteem and strategies to deal with trauma from their previous violent relationship experiences. That element could not be satisfied if men as well as women were to provide close and individual support to the women and their children seeking refuge, both during the day and after hours at night at the refuge site. [13] I am satisfied that it is a genuine occupational requirement for female staff to work in the roles of case workers, activities workers and counsellors in the Family/Domestic Violence Refuge Service. Section 25 of the Anti- Discrimination Act 1991 (Qld) would be available as a defence should a complaint be made against BoysTown of discrimination based on the attribute of sex in the work area. Where a specific defence to a complaint of breach of the Anti-Discrimination Act 1991 (Qld) is available, a general exemption under section 113 of that Act is not required. [14] Quite apart from the protection against complaints that section 25 provides, a decision to employ female staff only in the Family/Domestic Violence Refuge Service is also protected by section 104 of the Anti- Discrimination Act 1991 (Qld). Again as discussed in the Women’s Community Aid Association case, a person may lawfully engage in conduct that benefits the members of a group of people for whose welfare the conduct was designed and in doing so, the conduct is not discriminatory if the purpose for carrying out the conduct is not inconsistent with the Anti-Discrimination Act 1991 (Qld). [15] Providing a range of support services, counselling and a safe refuge for women and children who have experienced violence from men is for the benefit of women (i.e. for a group of people identified by the attribute of their sex). I am satisfied that the purpose of providing these services by female staff is not inconsistent with the Anti-Discrimination Act 1991 (Qld) as the Family/Domestic Violence Refuge Service seeks to support vulnerable women to restore their dignity and sense of worth consistent with the aspiration of contemporary society.4 [16] In conclusion, the specific exemption in section 25 or section 104 provides a valid defence to a complaint that employing female staff only in the Family/Domestic Violence Refuge Service would breach the Anti- Discrimination Act 1991 (Qld). I am satisfied that a general exemption from liability under section 113 is not necessary in view of the existence of a specific exemption. [17] I accordingly refuse the application for a general exemption. 4 See stated reasons in the pre-amble to the Anti-Discrimination Act 1991 (Qld). -- 4 of 4 --